No Privilege for In-House Lawyers, EU Adviser Says

(CN) – An adviser to Europe’s top court recommended dismissing a challenge to the practice of excluding in-house counsel from attorney-client privilege.

During an investigation into a plastics additives cartel, authorities searching a business in the United Kingdom copied two emails between a manager and the legal department of Akzo Nobel Chemicals and Akros Chemicals. The chemical companies challenged the European Commission for using the emails, claiming that it violated attorney-client privilege. After the General Court dismissed the proceeding, the chemical companies appealed to the Court of Justice of the European Union. Advocate General Kokott also backed dismissal, pointing out that salaried, in-house lawyers do not retain the same degree of independence from their clients as lawyers working in independent firms. Because their jobs depend on the work they do for a single company, they are more prone to professional conflicts of interest, Kokott said. The court adviser also noted that, among the 27 member states, there’s no trend toward extending this privilege, nor have there been any new developments within EU legislation. Thus, case law from the 1980s should continue to apply, Kokott suggested. He urged the Luxembourg-based court to uphold the lower court’s dismissal order.